PART 5: SUMMARY OF GENERAL
EVIDENCE ON THE PUBLIC SERVICE AND THE COMMITTEE'S CONCLUSIONS
AND RECOMMENDATIONS (continued)

Answering Parliamentary Questions:
the Constitutional Identity of the Civil Servant

350. Allocation of accountability
between Ministers and Chief Executives rests on the assumption
that Chief Executives can properly be held accountable in some
cases. This assumption has obfuscated the traditional view that
Ministers remain accountable for everything that happens in their
department, and Civil Servants act and speak only on behalf of
the Minister. In practical terms, the debate about accountability
can often be boiled down to the question of who answers Parliamentary
questions. The views of our witnesses were divided about this.
Some thought that the role of chief executives was no different
from the role of Permanent Secretaries. Others thought that the
position of chief executives was already unlike the position of
other Civil Servants, and that chief executives ought to be given
yet more scope to answer questions for themselves rather than
for Ministers. Others of our witnesses simply thought the current
position was confused.

351. Dr O'Toole questioned
(Special Report, pp 266 to 267) whether officials could in any
proper sense be described as 'accountable'. "The claim of
Ministers is that the increasing transparency of decision making
which is implicit in the devolution of administrative powers to
the agencies has meant that public officials are more accountable
now than ever before. In particular, they point to the Citizen's
Charter, the proliferation and publication of performance criteria,
and the decreasing anonymity of Civil Servants as evidence for
this. Indeed these are all facts. However, they do not necessarily
add up to an improvement in responsibility and accountability.
The reason is simple: it is Ministers and Ministers alone who
answer to Parliament for the whole range of Government activity;
and it is Parliament, through elections to the House of Commons,
which answers to the public. Agency chief executives and other
officials may well appear before select committees or in the media;
but they are not directly answerable to the electorate through
Parliament."

352. Sir Richard Wilson
(Q 957) explained the position thus: "a civil servant appearing
before a Select Committee ... appears to represent the Government's
views, to assist the Committee in answering whatever it needs
to know from the executive. It is not for the official to give
their own views on any issue, it is for the official to explain
as best they can what the Government's position is. That applies
whether they are a Permanent Secretary or chief executive of an
agency or any other official of any kind. Their job is to come
and to help the Committee to the best of their ability, but, subject
to the instructions of their Ministers, to help the Committee
understand what the Government's position is on a particular issue."
He added (Q 959) "If you believe in a neutral, impartial
Civil Service which does not have a political allegiance, it is
important that the rules about appearances before Select Committees
reflect that and respect that status".

353. That position was
endorsed by the then Government in its response to the House of
Commons Public Service Committee's Second Report for the Session
1995-96, Ministerial Accountability and Responsibility,
and of course all the Civil Servants who gave evidence to the
Committee were bound by that. This was reflected when, for example,
Ms Ann Chant was asked (QQ 531 to 533) to give a personal view
on whether she agreed with Lord Nolan's recommendation that agency
chief executives should be more directly accountable to Parliament.
Her response was "I think I can only say I would be happy
to do whatever Ministers and Parliament called upon me to do.
Clearly either pattern would work".

354. Sir Richard Wilson
(Q 947) said "Delegation of authority within a department
internally is a management matter, it is not a constitutional
matter, it is a matter of management and it happens at all levels,
and it does not conflict in any way with the accountability of
Ministers to Parliament as a constitutional doctrine. Of course,
Ministers cannot do everything, they cannot know everything, there
have to be arrangements whereby officials take on their job. The
Carltona doctrine [see paragraph 358 below] ... is one
which operates across every department, and in practice the responsibility
of a Minister for what actually happens is still now as it was
set out by Sir David Maxwell-Fyfe in the Crichel Down case".

355. The Committee asked
Mr Richard Tilt (Q 1471) about the present Home Secretary's decision
that all Parliamentary Questions relating to the Prison Service
would now be answered by a Minister rather than by the chief executive.
Mr Tilt replied, "My view is that Ministers always were,
and continue to be, accountable for the Prison Service, and rightly
so. I think the present Home Secretary felt very strongly that,
presentationally, one ought to have Parliamentary Questions answered
by Ministers. I welcome that because it demonstrates his ability,
or his wish, to associate himself closely with the Prison Service,
and that is good for us. It does not make a great deal of difference
in terms of how one dealt with the machinery of answering Parliamentary
Questions; the Home Secretary, when he made that announcement,
at the same time took the opportunity to say that it had no significance
for the role of the Director General or, indeed, for agency status."

356. Sir Richard Wilson
also felt that Ministers had always remained accountable. He said
(Q 964) "the fact is that when things go wrong in prisons
there is huge public interest in them, and if you look at what
actually happens Ministers do come to Parliament to give an account,
whether or not these were policy or operations or whatever, because
they are matters of grave public and parliamentary concern. In
practice ... the handcuffing of women in labour was a matter of
public concern and it came before Parliament, and there is a whole
string of similar examples which one could give where the public
have been concerned, Ministers have responded and agency status
has not got in the way. So I agree about the importance of making
sure agencies do not become a barrier between the concerns of
the public and the ability of Parliament to require an account,
but I do not know there is any evidence it has become a barrier."

357. When asked whether
chief executives should answer Parliamentary Questions, Sir Terence
Burns said (Q 1409) "I think in the end this has to be a
question of the preferences of the Minister concerned. I think
it is a question of whether they feel comfortable with having
questions answered by the Head of the agency or not. I think there
is a lot to be said for having the routine questions which do
not require any real political input being handled by the people
who are running the agencies and then reserving for the Minister
the questions which have got a political input. The problem, of
course, is that some questions which may one week appear to be
a simple statistical question the next week turn out to have a
political input to them. My approach to this is really to make
sure that the Minister to whom the agencies report is comfortable
with the arrangements." Agreeing that it was important to
ensure that neither Minister nor chief executive could avoid answering,
Sir Terence said (Q 1412), "it is the most important principle
of all of any delegation that you should always know who has got
the baton and whose name is on it and who would be called to account."

358. On a more theoretical
level, Professor Bogdanor questioned (Special Report, p 37) whether
Civil Servants (when acting other than as accounting officers)
can ever act other than on behalf of their Ministers. To
say that they can goes against the conventional idea of the civil
servant as the alter ego of the Minister. This was the
convention underlying the Armstrong Code (see paragraph 405 below)
and which was embodied in the Carltona doctrine. Mr Justice
Sedley (Administrative Law and Government Action, Oxford
University Press, 1994) described the doctrine thus: "...Ministers
have historically relied on their Civil Servants to do most of
their work and much of their thinking for them. By the 1940s this
was well established, but no statute or doctrine of common law
had ever sanctioned it, and executive and prerogative powers were
always (as they still are) vested by law in Ministers alone. Intra-departmental
delegation, theoretically underpinned by Ministerial responsibility,
was an accepted convention, but when in 1943 its lawfulness was
challenged (Carltona Ltd v Commissioners of Works [1943]
2 All ER 560) the Court of Appeal found itself compelled to elevate
departmental practice into a doctrine of law. Since the whole
immunity of the state from tort actions rested on the theory that
Civil Servants were the servants not of their Ministers but of
the Crown, so that the Minister was legally no more than first
among equals, an entirely heterodox concept of the civil servant
as the Minister's alter ego was enunciated. It violated
all the common law rules against unauthorised delegation, but
it perfectly adequately described what went on and could not be
stopped, and it has done service ever since as a principle of
constitutional law."

359. Sir Robin Butler
said (Q 2136) that the Carltona principle was "absolutely
unaffected" by changes in the Civil Service. He explained
(Q 2138) "It is precisely in order to keep the importance
of the Carltona principle that we have always argued against
heads of agencies being given some direct line of accountability
to select committees and to Parliament separate from the Minister.
They must be there in order to maintain the Carltona principle
as the personification of the Minister. That is not to say that
I have got the slightest objection to heads of agencies appearing
before select committees. I think they ought to and I think select
committees ought to question them all they want to because that
is the horse's mouth from which they get the information about
the existence of these agencies. But I really do think it would
be a constitutional change if the heads of the agencies or anybody
else was giving some direct accountability to Parliament which
bypassed the Minister. That would undermine the Carltona
principle".

360. Thus Sir Robin
saw no distinction between the position of a chief executive and
the position of a Permanent Secretary. He said (Q 2084) "They
are both arms of the Minister". He described the position
thus (Q 2085): "I absolutely feel that in all respects about
an agency, Ministers can be questioned about the operations of
an agency. That is what distinguishes them from a quango. Where
some confusion may have arisen is that in order to emphasise that
the chief executive has got certain management roles delegated
to him or her by the Minister, we have had this arrangement that
the chief executive often answers MPs' letters or questions. This
is to emphasise that this role is delegated. But this is the essential
point, any MP who is not satisfied with the chief executive's
answer has a complete right to take that up with the Minister.
The Minister is entirely accountable for what goes on in the agency".

361. Professor Bogdanor
(Special Report, p 37) and QQ 137 and 163) questioned the traditional
position, saying that he thought the Civil Service had a duty
to the constitution and a unique role in maintaining the unwritten
constitution, which in turn raised the question whether if an
official saw a Minister acting in a way which was unconstitutional,
misleading Parliament or seeking to avoid the principle of Ministerial
accountability, he had a right, and perhaps a duty, to do something
about it.

362. Lord Nolan drew
a distinction between the position of a chief executive of an
agency and the position of a Permanent Secretary in relation to
accountability. In Lord Nolan's view (Q 1803) "the chief
executive is there primarily as a business executive, and is often...brought
in from the business world to carry out his functions. He is not
a traditional civil servant". Lord Nolan took the view (Q
1806) that there might well be things that the chief executive
is better placed to answer that than the Minister, and in that
case the chief executive should be called upon to give the answers.
"In other words" said Lord Nolan "the Permanent
Secretary should be protected from the parliamentary committees
but the chief executive should not".

363. Mr Derek Lewis
took this view even further (Special Report, p 261). He wrote
"The chief executive and board of an agency must be free
to make public their views on the operational implications of
the policies that they are required to implement. If this is not
permitted the principle of Ministerial responsibility is seriously
distorted. Ministers would be free to impose half-baked impractical
policies or to set wholly unrealistic performance targets, and
then simply load the blame onto those running the agency for any
failure to implement or achieve, as a mere operational matter.
The public needs to know the views of the professionals in charge
of its major public services on significant policy issues. If
the public knows only the views of politicians, it cannot form
balanced judgments about the policy decisions being taken by its
elected representatives."

364. The Committee asked
Dr Clark for his view as to how accountability might work in the
case where one person is responsible for policy and another for
operations. He said (Q 1848), "I do not think I have a definitive
answer to that". He maintained the view that (Q 1846) "at
one level the Minister is accountable for what goes on within
his agency", but admitted that (Q 1848) "it was to the
advantage of the Minister to encourage his chief executive to
appear before the Select Committees". At the same time, he
conceded that Members of Parliament were not always satisfied
with answers given by Chief Executives (Q 1846). He considered
the present arrangement to be unsatisfactory, and suggested that
the Government needed to address the problem. "We are operating
under variable geometry at the moment" he said "while
we are waiting for the outcome of the Better Government White
Paper".

365. An agency's
activities are very clearly circumscribed, and their successful
performance is the responsibility of the chief executive. These
two facts taken together explain why it is for the first time
possible to suggest that an official rather than a Minister should
be accountable for a particular area of activity. Very quickly
it has become an established convention that chief executives
of Next Steps agencies provide the substance of written answers
to parliamentary questions and are held to be responsible for
operational matters within the agency they run. The Minister's
reply in Hansard consists of a covering letter signed by the Minister,
accompanying a substantive answer signed by the chief executive.
Rather than answering questions about agencies themselves, Ministers
now often refer queries to chief executives instead. This seems
very different from the previous understanding, which was that
Ministers were accountable for everything that went on in their
department, and Civil Servants spoke only on behalf of the Minister.

366. However,
devolution of accountability raises both practical and theoretical
issues. On a theoretical level, the question arises whether any
attempt by Ministers to distinguish between responsibility for
policy and responsibility for operations is consistent either
with the Armstrong Code or with the Carltona doctrine.
If that doctrine holds good, then whatever might be said in an
executive agency's framework document, its chief executive is
in all things acting as his Minister's alter ego. In terms
of the Armstrong Code, the chief executive has no constitutional
personality or responsibility separate from that of the Government.
If it is claimed that in operational matters a chief executive
(but not the Minister) is personally responsible because the Minister
has delegated that responsibility to him, then the chief executive's
position is radically different from that of the Permanent Secretary,
except perhaps, when the latter acts as an accounting officer.
Such an interpretation would have far-reaching implications for
the current status of both Civil Servants and Ministers as servants
of the Crown-and, indeed, for Crown immunity. The Committee considers
that the precise relationship between Ministers and Civil Servants
is now subject to a variety of interpretations, and that there
is now a need for this relationship to be clearly defined, taking
into account the Carltona doctrine, the Armstrong Code,
the Civil Service Code and the new position of Chief Executives.
It is a matter for reflection as to whether the Carltona doctrine
is really relevant, or indeed in operation, in the changed circumstances
of today, or whether the Civil Service should not be regarded
as in some respects a separate organ of the constitution distinct
from the Ministers of the Government. A Civil Service Act might
be the means by which to clarify this. The idea of a Civil Service
Act is discussed more fully in paragraphs 403ff below.

367. On a more
practical level, the Committee considers that it is unrealistic
to imagine that Ministers will not become involved when an operational
matter suddenly raises a policy issue. That being so, it is impossible
to devolve absolute accountability to chief executives so as to
allow them to answer questions on their own behalf. Any such devolution
would lead to an unworkable system where there were dual lines
of accountability to the chief executive and to the Minister.
The Committee recommends that in clarifying the relationship between
Civil Servants and Ministers, the Government should affirm that
the position of agency chief executives is no different from the
position of any other civil servant; that when chief executives
provide the substance of written answers to parliamentary questions
or appear before select committees they do so on behalf of the
Minister; and that Ministers are accountable for whatever goes
on in their agencies just as they are accountable for whatever
goes on in the rest of their departments. The Committee hopes
that such an affirmation would prevent it being thought that Ministers
could pass responsibility for operational matters to chief executives.

382. The bulk
of the evidence which the Committee received on standards of service
related to the Department of Social Security. It was overwhelmingly
positive. A number of members of the Committee visited the Benefits
Agency in Leeds, and a local benefits office, also in Leeds. They
were very favourably impressed by what they saw. The staff were
well motivated, courteous to applicants, efficient and anxious
to be giving and to be seen to be giving highly satisfactory service
in difficult circumstances. The little evidence we received about
standards more generally across the Civil Service since the introduction
of agencies backed this up. The Committee therefore concludes
that the introduction of agencies has improved standards of service
delivery in the Civil Service. However, the Committee notes the
concerns of witnesses that those standards will fall if agencies
are subject to severe financial cuts. The Committee also shares
Lord Nolan's concern about the "organisation and traditions
and standards of the Civil Service". Performance standards
are important: but they are not everything. The possible detrimental
effect of agencies on accountability and ethos are discussed elsewhere
in this Report.